Kasamuddin vs State
2017 Latest Caselaw 1667 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 40
 

 
Case :- JAIL APPEAL No. - 2216 of 2011
 

 
Appellant :- Kasamuddin
 
Respondent :- State
 
Counsel for Appellant :- From Jail,H.L.Singh Kushwaha,M.A. Haseen,Mohd. Afzal
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

(By the Court)

Heard Sri M.A. Haseen, learned counsel for the appellant and Smt. Manju Thakur, learned brief holder appearing for the State.

This appeal has been preferred by the appellant Kasamuddin u/s 372(4) Cr.P.C. against the judgement and order dated 28.02.2011 passed by Additional District and Sessions Judge, Court No.14, Ghaziabad in S.T. No. 2011 of 2009, State Vs. Kasamuddin u/s 363, 366, 376, 506 I.P.C., P.S.- Sahibabad, District- Ghaziabad by which the appellant has been convicted and sentenced to 3 years rigorous imprisonment and a fine of Rs. 3,000/- u/s 363 I.P.C., 5 years rigorous imprisonment and a fine of Rs. 5,000/- u/s 366 I.P.C., 10 years rigorous imprisonment and a fine of Rs. 10,000/- u/s 376 I.P.C. and 3 years rigorous imprisonment and a fine of Rs. 3,000/- u/s 506(2) I.P.C. together with default clause providing that in case of default in the payment of fine, the petitioner shall be liable to undergo additional rigorous imprisonment of 3 months, 5 months, 1 year and 3 months respectively on each count. All the sentences were directed to run concurrently.

Briefly stated, facts of this case are that P.W.1 informant Smt. Sudha Gupta, was earlier residing with her husband Sri Aadesh Kumar Gupta, son of Sri Jagdish Prasad in Garima Garden near Pasauda, Ghaziabad where she was running a general merchandise shop. Accused-appellant Kasamuddin alias Hasmuddin, son of Allauddin, who was also a resident of the same locality used to visit her general merchandise shop frequently for purchasing articles of daily requirements. His brother Pan Mohammad, who also resided in a rented house in the same locality used to visit her shop along with his brother Kasamuddin and both the brothers had developed family terms with P.W.1 informant Smt. Sudha Gupta and had also started visiting her house. P.W.1 informant Smt. Sudha Gupta had shifted to a new residence at A-141, Extension-II, Krishna Kunj, Shalimar Garden from her former residence in Garima Garden about nine months before the occurrence. As accused-appellant Kasamuddin was working as a tailor in Shivnam Boutique located in Shalimar Garden and her daughter Kamini alias Dolly was keen on learning sewing and stitching, the informant Smt. Sudha Gupta requested the accused-appellant Kasamuddin and his brother Pan Mohammad to suggest some lady tailor from whom her daughter Kamini alias Dolly could learn sewing and stitching on which accused-appellant Kasamuddin, suggested that he himself could teach sewing and stitching to her daughter and as the informant and her family members trusted Kasamuddin and his brother Pan Mohammad, they allowed Kasamuddin to start teaching sewing and stitching to her daughter Kamini alias Dolly in her house and for that purpose, the accused-appellant started coming to her house daily in the morning as well as in the evening. In lieu of his services, the accused-appellant Kasamuddin was paid a sum of Rs. 400/- per month by the informant towards his remuneration. On 20.07.2009 at about 12:30 P.M., accused-appellant Kasamuddin took her daughter, who was aged about 17 years, to the market on the pretext of purchasing some material pertaining to sewing and stitching but thereafter, neither the accused-appellant Kasamuddin nor her daughter Kamini alias Dolly returned and despite a massive search, their whereabouts could not be located. The accused-appellant after enticing away her minor daughter had threatened the informant with dire consequences by his mobile no. 9958939483 in case she dared to make any effort to search her daughter. It was later discovered by the informant that her daughter before being abducted by the accused-appellant had taken with her a sum of Rs. 5,000/- from her house. Apart from the informant, Noor Mohammad and Kapil, son of Satish, resident of Ashok Vatika, Launi, Ghaziabad and the informant's brother, several other residents of the locality had seen the accused-appellant taking her daughter with him to the market. On the basis of the written report of the incident (Ext.Ka.1) lodged by P.W.1 informant Smt. Sudha Gupta at P.S.- Sahibabad, District- Ghaziabad on 11.08.2009 at about 1410 hours, Case Crime No. 1865 of 2009 u/s 363, 366 and 506 I.P.C. was registered against the accused-appellant Kasamuddin. Check F.I.R. (Ext.Ka.10) and relevant G.D. Entry were prepared by P.W.6 Munish Chand, Head Moharrir. After its registration, the investigation of the case was entrusted to P.W.3 S.I. K.K. Rana, who visited the place of occurrence and after inspecting the same, prepared its site plan (Ext.Ka.5) and recorded the statements of the witnesses. During the investigation, after the victim was recovered, he got her medically examined and subjected her to radiological examination for determination of her age. He also got the statement of the victim recorded u/s 164 Cr.P.C. before the concerned magistrate in which the victim apart from supporting the prosecution case, had also alleged that the accused-appellant had committed rape on her. After completing the investigation, the Investigating Officer submitted charge-sheet against the accused-appellant u/s 363, 366 and 506 I.P.C. before the Chief Judicial Magistrate, Ghaziabad.

Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Ghaziabad committed the case for trial of the accused-appellant to the Court of Sessions Judge, Ghaziabad where it was registered as S.T. No. 2011 of 2009, State Vs. Kasamuddin and made over for trial to the Court of Additional District and Sessions Judge, Court No.14, Ghaziabad, who on the basis of the material on record and after hearing the prosecution as well as the accused on the point of charge, framed charge against the accused-appellant u/s 363, 366, 376 and 506(2) I.P.C. The accused-appellant abjured the charges and claimed trial.

The prosecution in order to prove its case against the accused-appellant examined as many as six witnesses of whom P.W.1 informant Smt. Sudha Gupta, P.W.2 victim Kamini Gupta and P.W.5 Kapil were examined as witnesses of fact while P.W.3 S.I. K.K. Rana, Investigating Officer, P.W.4 Dr. Saranju and P.W.6 Munish Chand, Head Moharrir were produced as formal witnesses.

The accused-appellant in his statement recorded u/s 313 Cr.P.C. denied the prosecution story but admitted that he used to visit the informant's house everyday in the morning and in the evening to teach tailoring to her daughter. However, he denied that he was paid any remuneration. He further stated that all the witnesses had given false evidence against him and in fact on the date of the incident, he had gone to Lucknow from Delhi by train which had left Delhi at 10:30 P.M. The victim Kamini alias Dolly and two other persons had forcibly lifted him from his house and he was illegally detained in the house of a police constable and thereafter, he was taken to the police station. He denied having committed any offence. The accused however did not examine any witness in defence.

Learned Additional District and Sessions Judge, Court No.14, Ghaziabad, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record, convicted the appellant u/s 363, 366, 376 and 506(2) I.P.C. and awarded him the aforesaid sentences.

Hence, this appeal.

Sri M.A. Haseen, learned counsel for the appellant has submitted that the appellant has already undergone the sentences awarded to him on his conviction under Sections 363, 366 and 506(2) I.P.C. including the period of additional imprisonments which he was required to undergo under the default clause and he is neither challenging the appellant's conviction u/s 363, 366, 376 and 506(2) I.P.C. nor the sentences awarded to him by the trial court u/s 363, 366 and 506(2) I.P.C.

Sri M.A. Haseen, learned counsel for the appellant has confined his submission only to one ground. He expressly gave up his challenge to the finding of the Court below so far as is the conviction of the appellant is concerned. In other words, the learned counsel for the appellant accepted the finding of conviction and the sentences awarded to him on his conviction u/s 363, 366 and 506(2) I.P.C. on merits. Apparently, finding no merit therein, he challenged the quantum of punishment (10 years rigorous imprisonment) awarded to the appellant u/s 376 I.P.C alone.

Sri M.A. Haseen has further submitted that Section 376(1) of I.P.C. prescribes that whoever except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to ten years and shall also be liable to fine uless the women raped is his own wife and is not under twelve years of age. He further submitted that admittedly the conviction of the appellant in this case is not under Section 376(2) of I.P.C. as the age of the victim on the date of occurrence was found to be about 17 years. Sri M.A. Haseen challenged the quantum of punishment (10 years rigorous imprisonment awarded to the appellant) and submitted that having regard to all circumstances which resulted in appellant's conviction and further keeping in view the fact that the appellant has already undergone 7 years and 10 months imprisonment till date and still continues to remain in jail, this Court may alter the award of 10 years imprisonment to that of the one already undergone by the appellant as he has already served out the minimum period of imprisonment prescribed on conviction u/s 376(1) I.P.C. According to him this is not a case where the trial court should have awarded 10 years rigorous imprisonment to the appellant. Sri M.A. Haseen urged that any term of more than 7 years would meet the ends of justice and since in this case 7 years and 10 months of imprisonment has already been undergone by the appellant, this Court should allow this appeal to this extent and by modifying the impugned judgement in so far as the quantum of sentence is concerned, reduce the same from 10 years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of fine six months additional imprisonment u/s 376(1) I.P.C. to that of the one already undergone by the appellant.

Per contra Smt. Manju Thakur, learned brief holder made her submissions in support of the sentence awarded by the trial court to the accused-appellant on his conviction u/s 376 I.P.C. and submitted that the appellant does not deserve any leniency from this Court as he has failed to make out any case for modification of the sentence awarded to him.

Having heard learned counsel for the parties and on perusal of entire record of the case, I am inclined to allow this appeal in part upon finding some force in the submission made by Sri M.A. Haseen, learned counsel for the appellant.

Though the appellant has not made any attempt to assail the finding of his conviction on merits, yet with a view to satisfy myself as to whether the finding of the Court below of conviction is legally sustainable or not, I perused the record and especially therein having so perused, I am satisfied that no case is made out to interfere in the finding of the Court below on merit for the following reasons:-

Firstly, although there was some delay in the lodging of the F.I.R. but the same has been satisfactorily explained.

Secondly, there is eye-witness account of P.W.1 informant Smt. Sudha Gupta and P.W.5 Kapil who have fully supported the prosecution case as spelt out in the F.I.R.

Thirdly, P.W.2 victim Kamini Gupta in her evidence tendered before the trial court has not only supported the F.I.R. version but has also proved that the accused-appellant had committed rape on her.

Fourthly, it is proved from the supplementary report (Ext.Ka.9) of the victim which was prepared by P.W.4 Dr. Saranju Kumar that on the date of the incident, she was a minor.

I, therefore, uphold the finding of conviction of the appellant u/s 376 I.P.C. recorded by the trial court.

Now, the question arises as to whether the appellant's sentence should be reduced and if so, to what extent, as urged by Sri M.A. Haseen, learned counsel for the appellant.

In order to appreciate the aforesaid submission made by Sri M.A. Haseen, learned counsel for the appellant, it would be useful to extract Section 376(1) & (2) of I.P.C. along with it's proviso and the explanations as hereunder:-

Section 376:- Punishment for rape--

(1)Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,--

(a) being a police officer commits rape--

	(i) within the limits of the police station to 	     which he is appointed; or
 
	(ii) in the premises of any station house                	     whether or not situated in the police  	     station to which he is appointed; or
 
	(iii) on a woman in his custody or in the 	      custody of a police officer subordinate 	      to him; or
 
	(b) being a public servant, takes 	   	     advantage of his official position and 	     commits rape on a woman in his 	 	     custody as such public servant or in 	     the custody of a public servant 	  	     subordinate to him; or
 

 
(c)being on the management or on the   	staff 	of a jail, remand home or other    place of custody established by or under        any law for the time being in force or of a woman's or children's institution takes advantage of his official position and 	    commits rape on any inmate of such jail,  remand home, place or institution; or
 

 
	(d) being on the management or on the 	     staff of a hospital, takes advantage of 	     his official position and commits rape 	     on a woman in that hospital; or
 

 
	(e) commits rape on a woman knowing 	     her to be pregnant; or
 

 
	(f) commits rape on a woman when she is 	    under twelve years of age; or
 

 

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub- section. Explanation 2.--"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.--"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

Thus, Section 376 of I.P.C. stipulates where a person has been convicted u/s 376(1) I.P.C., he shall be punished with an imprisonment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years. The word 'may' occurring u/s 376 I.P.C. indicates that it is not mandatory for the Court in every case to award either life imprisonment or a punishment with imprisonment of more than 7 years which is the minimum period of sentence provided on conviction u/s 376(1) I.P.C, to the accused once he has been found guilty of offence u/s 376(1) I.P.C.

A perusal of the impugned judgement and order indicates that the learned Trial Judge has awarded sentence of 10 years rigorous imprisonment and fine of Rs. 10,000/- and in case of default in payment of fine six months additional rigorous imprisonment which is more than the minimum sentence prescribed u/s 376(1) I.P.C. without assigning any reasons.

It has been submitted by Sri M.A. Haseen, learned counsel for the appellant that on the date of the incident, the accused-appellant, according to his age mentioned in his statement u/s 313 Cr.P.C. which was recorded on 21.02.2011 was about 17 years and admittedly he has no criminal antecedents. He is in jail for the last more than 7 years and 10 months and there has never been any complaint against him.

Thus, having regard to the totality of facts and circumstances of this case, this Court is of the considered opinion that the ends of justice would meet if the sentence of the appellant is reduced from 10 years rigorous imprisonment to that of the one already undergone by the appellant which is 7 years and 10 months.

The conviction of the accused-appellant Kasamuddin u/s 363, 366, 376(1) and 506(2) I.P.C. and the sentences awarded to him u/s 363, 366 and 506(2) I.P.C. are upheld. However, the sentence (10 years rigorous imprisonment and fine of Rs. 10,000/- and in default of payment of fine additional imprisonment of six months) awarded to the appellant u/s 376 I.P.C. is altered and is accordingly reduced to that of the one already undergone by him.

In the light of the foregoing discussion, the appeal succeeds and is allowed in part.

To this extent, the impugned judgement and order stands modified.

The accused-appellant Kasamuddin alias Hasmuddin is in jail. He shall be released forthwith unless he is wanted in some other case subject to his complying with the provision of Section 437-A of Cr.P.C.

There shall be however no order as to costs.

Order Date :- 13.6.2017

KS